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ELRCPartially AllowedMemorandum of Claim filed 2nd May 2023 (ELRC, Nyeri)· [2024] KEELRC 1874 (KLR)

Kenya National Private Security Workers Union v Eccel Services International Limited (Cause E007 of 2023) [2024] KEELRC 1874 (KLR)

Employment and Labour Relations Court
19 July 2024
3,444 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a union can sue without an employer recognition agreement, but the worker lost her dismissal claim because she couldn't prove it.

What this practically means

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Executive summary

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The claimant union, suing for its member Irene Kathure (grievant), alleged that she was summarily dismissed on 30th December 2022 by her supervisor for persistently requesting off/rest days, house allowance and overtime, and claimed compensation for unfair termination, notice pay, overtime, leave, house allowance, rest days, public holidays and unremitted NSSF and NHIF. The respondent denied the dismissal, contending the grievant absconded work, and raised a preliminary objection that the suit was fatally defective because it was filed and prosecuted by a non-Advocate union official, there was no proof of the union's registration or recognition agreement, and union membership receipts were inconsistent. The court overruled the objection, holding that union authority to represent derives from membership rather than employer recognition, and that issues raised only in submissions without notice could not defeat the claim. On the merits, the court found the claimant had failed to prove summary dismissal on a balance of probability and accepted that the grievant voluntarily absconded, so the claims for compensation for unfair termination and notice pay failed. However, the court awarded accrued benefits: salary underpayment of Kshs 11,529.65 against the applicable General Wage Orders, house allowance of Kshs 21,679.44, rest days of Kshs 38,541.24, overtime of Kshs 51,388.32 (72 hours worked weekly against 52 permitted) and leave of Kshs 8,988.47, totalling Kshs 132,127.12, subject to statutory deductions with interest at court rate from filing. Claims for public holidays, NSSF/NHIF and general damages were declined. The claimant was awarded half the costs. Judgment delivered at Nyeri on 19th July 2024 by Onesmus N Makau J.

Key legal issues

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01

Whether the suit was fatally defective for want of an Advocate, proof of registration, recognition agreement, or proof of paid-up membership

Holding

Not defective; preliminary objection overruled. Authority letter from the General Secretary, subscription receipts produced by consent, and the jurisprudence that a recognition agreement is not a precondition to union representation sufficed

Reasoning

The court found a letter authorising Mr. Josphat Mati to represent unionisable employees; receipts produced by consent were treated as valid since the court could not ascertain fraud; the registration issue was raised too late in submissions; and case law establishes that union representation of members does not depend on a recognition agreement with the employer.

p. 5
02

Whether the grievant was summarily dismissed or absconded

Holding

Claimant failed to prove dismissal on a balance of probability; the court found she voluntarily absconded work

Reasoning

No proof of service of the 2021 letter requesting rest days; no letters, texts or eyewitnesses proving persistent requests for off days; no proof the grievant called the Managing Director. The dismissal claim therefore failed and unfair termination did not arise.

p. 6
03

Whether accrued employment benefits (underpayment, house allowance, rest days, overtime, leave) were payable

Holding

Awarded; grievant was paid below the applicable General Wage Orders and worked 72 hours weekly against the 52 permitted, with no leave granted

Reasoning

The applicable minimum wage was Kshs 7240.95 (2018 Order) rising to Kshs 8109.90 from 1st May 2022; underpayment computed across both periods. House allowance of 15% of minimum basic pay awarded. Rest days and overtime computed from the excess 20 hours per week over Regulation 6 of the Protective Security Services Order. Leave computed at 1.75 days per month.

p. 6

Legal principles established

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  • Lack of a recognition agreement does not bar a trade union from representing its members in court; authority to represent flows from membership, not employer recognition
  • Compensation for unfair termination under section 49 of the Employment Act is only available where unfair termination by the employer is proved
  • Points raised for the first time in submissions without notice to the other side cannot be used to defeat a claim
  • An employee absconds work where he/she leaves employment without notice and with no intention of reporting back

Court orders

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  1. 1.Preliminary objection on the alleged fatal defect overruled entirely
  2. 2.Judgment entered for the claimant for accrued employment benefits totalling Kshs 132,127.12 (salary underpayment Kshs 11,529.65; house allowance Kshs 21,679.44; rest days Kshs 38,541.24; overtime Kshs 51,388.32; leave Kshs 8,988.47)
  3. 3.Award subject to statutory deductions but in addition to interest at court rate from the date of filing the suit
  4. 4.Claimant awarded half the costs of the suit

Authorities

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Legislation

  • Employment Actsections 27, 28, 31, 35, 36, 41, 45, 49
  • Labour Relations Actsections 19, 52, 69
  • Labour Institution Actsection 48
  • General Wage Order2018; 2022
  • Private Security Services Order / Regulations of Wages (Protective Security Services) Order1998, paragraphs 7(1) and 9(2); Regulation 6 and Regulation 7
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Peter Apolo Ochieng v Amedo Centre Kenya Limited
    [2016] eKLR
  • Kenya National Private Security Workers Union v Board of Trustees Salvation Army (UR)
  • Kenya Plantation & Agricultural Workers Union v Mahee Flowers Ltd
    [2023] KEELRC 1369 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over labour disputes (Employment Act, 2007; Labour Relations Act, conciliation under section 69 referred to this court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya National Private Security Workers Union v Eccel Services International Limited (Cause E007 of 2023) [2024] KEELRC 1874 (KLR)", Case Analysis (2024). Memorandum of Claim filed 2nd May 2023 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1874/eng@2024-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.